City of Detroit v. Whittemore

• Decision Date: 13 May 1873
• Court: Michigan Supreme Court
• Parties: The City of Detroit v. Joseph P. Whittemore

27 Mich. 281

The City of Detroit v. Joseph P. Whittemore

Supreme Court of Michigan

May 13, 1873

Heard May 7, 1873

Error to Wayne Circuit.

Judgment reversed, with costs, and a new trial ordered.

D. C Holbrook, City Counselor, for plaintiff in error.

George H. Prentis, J. P. Whittemore and Henry M. Cheever, for defendant in error.

OPINION

Cooley J.

It is a disagreeable task when a court is required to decide that a party who has performed for another a large amount of labor under the expectation on his part of reasonable compensation has no remedy in the law to compel payment. And such is the task we are required in this case to perform.

In 1868 Mr. Whittemore was employed by the city of Detroit, through a committee of the common council empowered for the purpose, to commence in the Wayne circuit court, and to carry through the several courts, as might be necessary, an important suit against the Detroit & Milwaukee railroad company. The employment seems to have contemplated that a case would be agreed upon between the parties, and Mr. Whittemore was to have an assistant selected by himself, and the whole expense was not to exceed five hundred dollars. The railroad company, however, declined to agree upon a case, and it became necessary to commence and carry on the suit in the usual way, and a large amount of testimony had to be taken. For some reason not explained no assistant counsel was called in, and the common council seem to have been satisfied to leave the whole matter in Mr. Whittemore's hands, and the city would therefore be under obligation to pay the whole of the five hundred dollars to him. There is some evidence from which it might be inferred that when it was found a case could not be agreed upon, the council, or its committee, were notified that the suit could not be carried through for the sum named, and that the case proceeded afterwards on an understanding that Mr. Whittemore should be paid what his services were reasonably worth. In July, 1869, he was appointed city counselor of Detroit, and acted as such from that time until January, 1872. The suit was pending in the circuit court at the time of his appointment; it was brought to a hearing in the following year, and after decision, was carried by appeal to the Supreme Court, where it was argued by Mr. Whittemore, and finally decided in 1871. When it was concluded, Mr. Whittemore presented his demand to the common council for settlement, claiming a fair compensation, irrespective of the original understanding. The counsel allowed him five hundred dollars only, and declining to take this, he brought suit. A jury has awarded him two thousand dollars as the fair value of his services.

The count in the case is upon a quantum meruit. Various errors are assigned in the record, but the only one we propose to consider is the charge of the court, that if Mr. Whittemore was employed by the city, previous to his appointment as city counselor, to conduct the case to its final termination, then he is entitled to recover what his services are reasonably worth, even though some portion of the services were rendered after such appointment. The whole controversy is covered by this charge, and if incorrect, the judgment cannot stand.

The office of city counselor of Detroit is a statutory office, and the term of office, duties and compensation are prescribed by the common council.--Sec. 2, ch. 2 of Charter. Section 3, of chapter 5 of the city ordinances, provides that the counselor "shall appear as attorney and counsel in behalf of the corporation in all suits, prosecutions or proceedings which shall be brought in any circuit court, or in the Supreme Court of this State, or in any United States court, by or against said corporation [the city], or any board thereof, or which, when brought, shall be removed in any mode whatever, from such circuit court into the Supreme Court, and as the case may require, shall prosecute or defend therein to the termination thereof." Another section requires of him an official bond, which is conditioned "for the performance of all his duties as prescribed by the charter and ordinances of the city."--Sec. 12, ch. 5.

From this enumeration of the duties of city counselor it will be perceived that the conduct of the suit against the Detroit & Milwaukee railroad company was a part of the official duty of that officer, which he was bound to perform for such compensation as the council should prescribe, and which in an official bond he must have undertaken to perform under a penalty. Had Mr. Whittemore come into the office without having had any previous connection with the case, no question whatever could have been made, that it would have been his duty to take up the case in the condition in which it then was, and conduct it to a conclusion. It would have been equally unquestionable that the salary appropriated by the common council to the office, must have covered all the compensation to which by law he would be entitled. Had he been connected with the case previously under an ordinary retainer which the city might terminate at the will of the council at any time, the same result must have followed. He could have demanded a reasonable compensation for all services performed by him previous to his appointment as city counselor, but all performed afterwards, falling within the duties of the counselor as enumerated in the ordinance, must have been considered as performed in that capacity.

But it is urged in support of the judgment below, that this case is distinguishable, because Mr. Whittemore had previously been employed to conduct the suit through all the courts. His appointment to an office, it is said, could not put an end to a contract previously existing and not yet fully performed. This is doubtless true as a general proposition, but whether it is so in the particular case may perhaps depend upon the nature and terms of the employment. If the city had previously had no...